2. Statutory interpretation is a question of law, and this court's review is unlimited.

3. A mortgagee does not acquire an interest in the mortgaged property. Rather, the
mortgagee acquires a lien securing the debt. Since the mortgagee only has a lien
on the mortgaged property, it is not entitled to possession of the property.
Consequently, a mortgagee cannot be liable for nuisance abatement on the
mortgaged property.

4. K.S.A. 60-1301 is cited and applied.

5. A receivership does not operate to alter, modify, or terminate obligations and
liabilities of the corporation or person in receivership.

6. A receiver is not liable for a nuisance created before the receiver was appointed.

GERNON, J.: Raintree Homes Association, Inc., (Raintree) appeals the decision of
the district court in a mortgage foreclosure case concerning real property on which a nuisance had
been found to exist. We affirm.

In December 1999, Raintree, a not-for-profit home association in Olathe, Kansas, filed
a petition against J. D. Homes, Inc., (J. D. Homes) and Premier Bank (Premier), alleging,
inter alia,
that a nuisance had been created on building sites owned by Raintree in Olathe. J. D. Homes was
involved in building and improving residential lots on the site. Premier provided the mortgages on
the lots.

The nuisance claimed by Raintree consisted of trash, dirt, rock, and lumber scattered
throughout the property that allegedly affected the enjoyment and ownership of the Raintree
Condominiums by their owners. Raintree sought $11,973.50 in damages.

J. D. Homes admitted to creating the nuisance on Raintree's property. The trial court
found that J. D. Homes created and maintained a nuisance on the property, ordered that it be
abated,
and granted a judgment for $11,973.50.

In January 2000, Premier filed a mortgage foreclosure action on the Olathe property.
The case was filed in Johnson County, as was the nuisance action. The foreclosure petition
alleged
that J. D. Homes had failed and refused to pay the outstanding loan principal and accrued interest
on
the property. The court appointed a receiver to prevent a further nuisance on the property and to
manage it.

Premier filed a motion for summary judgment in its foreclosure action. Raintree
countered with a motion to stay summary judgment and to compel abatement of the adjudicated
nuisance.

The court granted Premier's motion for summary judgment and entered judgment
against J. D. Homes for $267,908.46 plus interest. After a sheriff's sale, the court determined that
Premier had a first and prior lien over the sale proceeds. Raintree appeals.

PRIORITY

Raintree argues that the judgment for street repairs stemming from the damage caused
by the nuisance is prior in right to Premier's mortgage. Premier counters that the trial court
properly
exercised the discretion it had to determine the priority of the distribution of the proceeds from
the
sale.

McFall v. Ford, 133 Kan. 593, 1 P.2d 273 (1931), concerns a very similar
situation.
A bank in Wichita filed three actions to foreclose on three tracts of land owned by the mortgagor,
M.
C. Combs. A judgment was entered for the bank and against Combs in each case. On the same
day
as that judgment was entered, Katie Thomas was awarded a personal judgment against Combs
and
a judgment for foreclosure. Later, some of the land involved in the bank's case was sold, with
none
of Thomas' judgment having been satisfied.

According to the court, when two of the foreclosure lawsuits were filed, Thomas had
no lien on those tracts. However, when Thomas won a judgment of foreclosure on one of the
tracts,
her judgment became a lien on the other tracts. As support for the last contention, the court cited
R. S. 1923 60-3126, which stated: "Judgments of courts of record of this state, and of courts of
the
United States rendered within this state, shall be liens on the real estate of the debtor within the
county in which the judgment is rendered." The court decided Thomas' lien "originated in her
judgment, and the [bank's] liens were necessarily superior to the lien which [Thomas] acquired."
133
Kan. at 595.

The modern version of the statute cited in McFall is K.S.A. 2001 Supp.
60-2202(a):

"Any judgment rendered in this state by a court of the United States or by a district
court of this state in an action commenced under chapter 60 of the Kansas Statutes Annotated
shall
be a lien on the real estate of the judgment debtor within the county in which judgment is
rendered.
Except as provided in subsection (c), the lien shall be effective from the time at which the petition
stating the claim against the judgment debtor was filed but not to exceed four months prior to the
entry of the judgment."

Pursuant to 60-2202(a), the judgment against J. D. Homes for the nuisance was a lien
on J. D. Homes' real estate located in Johnson County. Raintree's petition was filed on December
7,
1999, and the judgment was entered on June 29, 2000. Raintree's lien was, therefore, effective on
February 29, 2000. Premier's lien was effective on July 24, 1997, the day the promissory note
was
prepared.

The trial court was correct in finding that Premier's lien had priority.

TRANSFERRED LIABILITY

Raintree claims that Premier became a transferee of the property when it filed a
foreclosure action on the property and a receiver was appointed to manage the property. Premier
asserts that it never held title to the Olathe property and any responsibility to abate the nuisance
was
with the new owner, A & H Properties, and not with Premier. A & H Properties
purchased the
property on March 30, 2001.

Raintree's first argument is that Premier is liable for the abatement because Premier
filed a foreclosure action on the property. Although this issue is one of first impression in Kansas,
the legal theory behind it can be analogized to the lien theory/title theory of mortgage law.

Kansas is a lien theory state, not a title theory state. "In a 'title theory' jurisdiction .
. . the mortgage is viewed as a form of title to property. [Citation omitted.] In lien theory states,
a
mortgagee is not entitled to immediate possession of the property upon default because the
mortgage
is merely a lien and not a form of title. [Citations omitted.]" Hoelting Enterprises v.
Trailridge
Investors, L.P., 17 Kan. App. 2d 777, 783, 844 P.2d 745, rev. denied 252 Kan.
1092 (1993).

Under Kansas law, a mortgagee does not acquire an interest in the property, either
before or after the promise to pay is broken, "'"but acquires only a lien securing the indebtedness
described in the instrument."' [Citations omitted.]" 17 Kan. App. 2d at 783.

Premier, as the mortgagee, only had a lien on the property and was not entitled to
possess the property. Since Premier could not possess the property upon filing a foreclosure
action,
it logically follows that it should not be liable for nuisance abatement on that property. The filing
of
the foreclosure action by Premier was an acceptable exercise of its rights under the mortgage. If
the
law were as Raintree suggests, no mortgagee would ever foreclose on a piece of property for fear
it
would be liable for judgments on the property.

Premier did not become liable for the nuisance abatement simply by filing a foreclosure
action against Raintree. If that were the case, mortgage lending would carry a potentially heavy
price
for the lending institution. Such a decision would have a chilling effect on mortgage lending in this
state. In addition, assessing liability against Premier would run counter to the notion that Kansas
is
a lien theory state.

Raintree's second argument that Premier is liable for the abatement because a receiver
was appointed to manage the property also fails.

Pursuant to K.S.A. 60-1301, a district judge has the authority to appoint a receiver,
and the receiver's duty "shall be to keep, preserve, and manage all property and protect any
business
or business interest entrusted to the receiver" pending the determination of the case.

Here, a receiver was appointed by the court in January 2000. The duties of the
receiver included:

"1. . . . (i) manag[ing] said real estate and [taking] whatever actions are necessary
to protect, preserve and prevent the same from further waste, damage or destruction; (ii) [taking]
any
action necessary to complete construction of the improvements if it is deemed to be in the best
interest of [Premier]; (iii) collect[ing] all income, rents and profits; and (iv) [having] the net
proceeds
derived from the collection of all income, rents and profits applied to the indebtedness of [J. D.
Homes] owed to [Premier].

"2. That this receivership shall continue until further Order of this Court.

"3. That the receiver shall submit a final accounting of its receipts and
disbursements upon termination of the receivership."

"A receivership does not operate to alter, modify, or terminate obligations and
liabilities of the corporation or person in receivership." 65 Am. Jur. 2d, Receivers § 284, p.
867. The
issue of whether a receiver is liable for a nuisance created before the receiver was appointed is one
of first impression in Kansas. As such, the law of sister states will need to be considered.

In Bartlett v. Cicero Light Co., 177 Ill. 68, 52 N.E. 339 (1898), a receiver
was
appointed for Cicero Light, Heat and Power Company (Cicero). Two months later, and still
during
the receiver's appointment, a young man was killed while working at Cicero. The machinery
which
killed the man was negligently installed prior to Cicero being placed in receivership. The man's
father
filed an action to recover for the death of his son. The father sued Cicero, claiming, inter
alia, the
receiver negligently managed the machinery his son came into contact with, thereby causing his
death
At the time the suit was filed, the receiver had been discharged by a stipulation of the parties.

The Supreme Court of Illinois identified the issue in the case as whether Cicero could
be liable for damages that occurred during the course of the receivership. 177 Ill. at 73. The
court
held that "a judgment, rendered while the receiver is in possession, should provide for its payment
out of the trust fund or the property in the hands of the receiver or under his control." 177 Ill. at
76.
Since the receiver had been discharged, however, Cicero itself was liable. 177 Ill. at 76.

Raintree's case differs from Bartlett, though, in an important respect. The
receiver
did not cause the damages Raintree wants Premier to pay for; J. D. Homes admitted to causing
the
nuisance before the receiver was appointed.

In Bush, Recr., v. Stephens, 131 Ark. 133, 197 S.W. 1157 (1917), Stephens
sued a
railroad company and its receiver, Bush, for negligent construction of a railroad over a water
source.
The trial court did not allow a judgment against Bush for damages arising from a tort committed
by
the railroad company before Bush was appointed.

On appeal, the Arkansas Supreme Court originally ruled that Bush could be sued by
Stephens because as a receiver, Bush stood in the shoes of the corporation for litigation purposes.
131
Ark. 140. On a rehearing, however, the court reversed itself, ruling it was in error when it held
that
Stephens was entitled to a judgment against Bush. 131 Ark. 141. The court cited cases from
Maryland, New York, and Arkansas in reaching its decision. 131 Ark. 141-42.

The gravamen of the court's decision was that a receiver cannot be liable for torts
committed prior to his or her appointment. 131 Ark. 141. An action for negligence brought
against
a receiver for actions that happened prior to his or her appointment cannot be sustained. 131 Ark.
141. The corporation for which the receiver is appointed is still responsible for its actions,
contracts,
and covenants, much as if the receiver did not exist. 131 Ark. 142.

Here, a receiver was appointed, and Raintree seeks to have Premier held responsible
for abating a nuisance that existed prior to the receiver's appointment. Under the persuasive
precedence of Bush, such an argument must fail. Premier was not responsible for the
abatement of
the nuisance; therefore, no liability should attach. The trial court was correct.

We have considered appellee's motion for attorney fees and deny the motion.